| People v Madison |
| 2017 NY Slip Op 01730 [148 AD3d 1289] |
| March 9, 2017 |
| Appellate Division, Third Department |
[*1](March 9, 2017)
| The People of the State of New York,Respondent, v Tyquanne D. Madison, Also Known as Turk,Appellant. |
M. Joe Landry, Schenectady, for appellant, and appellant pro se.
Chad W. Brown, District Attorney, Johnstown (Amanda M. Nellis of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Fulton County (Giardino, J.),rendered July 13, 2012, upon a verdict convicting defendant of the crimes of attempted murder inthe second degree, attempted assault in the first degree, criminal use of a firearm in the firstdegree and criminal possession of a weapon in the second degree.
Defendant was charged by indictment with attempted murder in the second degree, assault inthe first degree, criminal use of a firearm in the first degree and criminal possession of a weaponin the second degree based upon allegations that he went to the victim's apartment and shot him.A jury trial ensued and, in response to defendant's motion for a trial order of dismissal at theclose of the People's proof, County Court reduced the charge of assault in the first degree toattempted assault in the first degree, finding that the People failed to establish that the victimsuffered a serious physical injury (see Penal Law § 120.10 [1]). Defendantwas thereafter convicted of attempted assault in the first degree, as well as the remaining charges.He now appeals.
Defendant's contention that the verdict was not based upon legally sufficient evidenceidentifying him as the shooter is unpreserved for our review inasmuch as he failed to specifyidentification as the issue in his motion for a trial order of dismissal at the close of the People'sproof (see People v Brown, 139AD3d 1178, 1178 [2016]; People vThomas, 12 AD3d 935, 936[*2][2004], lv denied4 NY3d 749 [2004]). In any event, were we to consider the issue, we would find that, whenviewed in the light most favorable to the People (see People v Denson, 26 NY3d 179, 188 [2015]), the evidenceprovided a valid line of reasoning and permissible inferences from which a jury could concludethat defendant was the shooter (seePeople v McCommons, 143 AD3d 1150, 1155 [2016]; People v Ford, 110 AD3d 1368,1369 [2013], lv denied 24 NY3d 1043 [2014]).[FN*]
Defendant also argues that County Court erred in reducing the charge of assault in the firstdegree and, instead, the court should have either denied his motion for a trial order of dismissalor reserved decision. This contention is also unpreserved. If it was properly before us, we wouldfind that reversal is not warranted. Although we agree that County Court should have denieddefendant's motion for a trial order of dismissal based on its belief that legally sufficient evidenceexisted to support a lesser included offense of assault in the first degree (see CPL 290.10[1]; People v Vaughan, 48 AD3d1069, 1070 [2008], lv denied 10 NY3d 845 [2008], cert denied 555 US 910[2008]; People v Smith, 183 AD2d 653, 656 [1992], lv denied 80 NY2d 910[1992]; People v Johnson, 76 AD2d 983, 984 [1980]), our review of the recordestablishes that defendant suffered no prejudice as a result of the improper procedure(compare People v Congilaro, 60 AD2d 442, 458 [1977]).
Defendant also failed to preserve his pro se claim that County Court should have submittedattempted assault in the first degree as an alternative to attempted murder in the second degreebecause those crimes constitute inclusory concurrent counts (see People v Hayes, 104 AD3d 1050, 1052 [2013], lvdenied 22 NY3d 1041 [2013]). In any event, attempted assault in the first degree is not aninclusory concurrent count of attempted murder in the second degree because it is possible tocommit the latter without also committing the former (see Penal Law§§ 120.10 [1]; 125.25 [1]; CPL 300.30 [4]; People v Williams, 123 AD3d 527, 528 [2014], lv denied25 NY3d 1209 [2015]; People v Crews, 281 AD2d 904, 905 [2001], lv denied 96NY2d 861 [2001]; People v Alford, 251 AD2d 1032, 1032 [1998], lv denied 92NY2d 892 [1998]). For this reason, we also reject defendant's pro se contention that hisconviction of attempted murder in the second degree compels the dismissal of his conviction ofattempted assault in the first degree. Defendant's remaining contentions, including his claim ofineffective assistance of counsel, have been considered and determined to be lacking inmerit.
McCarthy, J.P., Garry, Lynch and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Contrary to defendant'sargument, this is not a case requiring an analysis of recantation evidence inasmuch as none of thetestifying witnesses later recanted his or her testimony after trial (see generally People v Lane, 100 AD3d1540, 1541 [2012], lv denied 20 NY3d 1063 [2013]; People v Deacon, 96 AD3d 965,969 [2012], appeal dismissed 20 NY3d 1046 [2013]; People v Wong, 11 AD3d 724, 725-726 [2004]).